SZGNY v Minister for Immigration & Citizenship [2007] FCA 384

FEDERAL COURT OF AUSTRALIA

SZGNY v Minister for Immigration & Citizenship [2007] FCA 384 Migration Act 1958 (Cth), ss 417, 424A SZGNY v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD73 OF 2007

EMMETT J

14 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD73 OF 2007

BETWEEN: SZGNY

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J DATE OF ORDER: 14 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration and Citizenship 2. The Applicant pay the Respondent's costs in the amount of $700.00 3. The appeal be dismissed Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD73 OF 2007

BETWEEN: SZGNY

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 14 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me an application for leave to file a notice of appeal out of time. The prospective notice of appeal relates to orders of the Federal Magistrates Court made on 21 August 2006. The applicant received a copy of the reasons of the Federal Magistrates Court before the end of August 2006, but delayed until 15 January 2007 in seeking to appeal from the orders of the Federal Magistrates Court. 2 Order 52 r 15(1)(a)(i) of the Federal Court Rules provides that a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced. Order 52 r 15(2) provides that a judge may, for special reasons, at any time give leave to file and serve the notice of appeal, notwithstanding that the prescribed time limit of 21 days has expired. 3 The questions that must be considered in dealing with an application such as this include the length of delay; whether the respondent will suffer any prejudice by reason of the delay; the nature of the injustice to the applicant if the right to appeal is denied; and any explanation for the delay in seeking to appeal. 4 It will often be necessary to consider the merits of a respective appeal in deciding whether or not there would be serious injustice to an applicant if the applicant were denied the right to appeal. The requirement for special reasons is an elastic test. It is suitable for application across a range of situations, from a mere oversight of a particular time limit to a neglect persisted in during a prolonged period. 5 The period in question in the present case is some months. The explanation offered by the applicant for the delay, is that he elected to seek an indulgence from the first respondent, the Minister for Immigration and Citizenship (the Minister), rather than appeal. He informed the Court today that he understood that the Minister would not consider such an application if he had an appeal on foot. 6 That may be so, but it does not seem to me to justify ignoring the rules of the Federal Court. In effect, it might be construed as an election not to appeal, to ask the Minister to make a more favourable decision than that made by the second respondent, the Refugee Review Tribunal (the Tribunal), whose decision was the subject of the proceeding before the Federal Magistrates Court. 7 It has not been suggested by the Minister that the delay has occasioned any prejudice to the Minister. However, the Minister points to what is said to be a lack of merit in the proposed appeal if an extension of time were permitted. It is, therefore, necessary to examine the decision of the Tribunal and the reasons of the Federal Magistrates Court to determine whether or not there is at least an arguable case for the applicant, if an extension of time were granted. 8 The applicant is a citizen of Nepal. He arrived in Australia on 15 October 2001. On 1 April 2005, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth). On 26 April 2005 a delegate of the Minister refused the grant of a protection visa and on 4 May 2005 the applicant applied for a review of that decision by the Tribunal. 9 On 6 June 2005, the Tribunal affirmed the delegate's decision. However, on 9 November 2005, the Federal Magistrates Court, by consent, set aside the Tribunal's decision and remitted the matter to the Tribunal for reconsideration according to law. On 24 February 2006, the Tribunal again affirmed the Minister's decision not to grant a protection visa. 10 The applicant commenced a proceeding in the Federal Magistrates Court on 21 March 2006, seeking judicial review of the Tribunal's decision of 24 February 2006. There is no suggestion that that proceeding was not commenced within time. An amended application and a further amended application were filed on behalf of the applicant, the latter being filed on 14 July 2006. 11 After a hearing on 14 July 2006, at which the applicant was represented by a solicitor, the Federal Magistrates Court dismissed the proceeding on 21 August 2006. Detailed reasons were then published by the Federal Magistrates Court. As I have said, the applicant accepts that he received a copy of the reasons before the end of August 2006. 12 The applicant appeared in person today without any assistance from an interpreter. He has a good comprehension of English. In his affidavit in support of the application for leave to file out of time the applicant attached a draft notice of appeal which says as follows: "- The Honourable Federal Magistrate failed to properly understand my submissions. - There are significant errors made by Federal Magistrate that I will explain in my further submission. - I am trying to find a lawyer and my lawyer might amend my case." 13 The applicant said in his oral submissions to the Court this morning that he had not been able to obtain the assistance of a solicitor for the appeal because he did not have funds. He said the solicitor who had previously appeared for him required payment in advance, which the applicant was unable to make. However, he provided to the Court this morning further grounds that he would rely upon in his appeal. Before looking at those grounds, however, it is desirable to say something more about the reasons of the Tribunal and the decision of the Federal Magistrates Court. 14 The applicant arrived in Australia in October 2001 to pursue a course of study. He arrived on a visa that permitted entry and remaining in Australia for that purpose. The Tribunal was satisfied that the applicant is a citizen of Nepal, as he claimed, having travelled to Australia on a Nepalese passport. However, the Tribunal found that the applicant was not a credible witness. The Tribunal considered that many of the key aspects of his testimony and his claims were simply not plausible. 15 The Tribunal summarised the applicant's claims as being that his family has been the target of Maoist attacks. Specifically, the applicant claimed that government authorities have an adverse interest in his brother because of his brother's involvement with the Nepalese Congress Party and he fears that, if he returned to Nepal, the authorities or the Maoists would find him and subject him to persecution in an effort to locate his family members. 16 The Tribunal accepted that the political situation in Nepal is marked by violence and that Maoists have threatened, harmed and committed acts of violence and human rights abuses and targeted persons considered to be their enemies. The Tribunal also accepted that persons who fall into disfavour with the authorities because of their actual or imputed political opinion may face serious harm, which may give rise to a well‑founded fear of persecution within the meaning of the Refugees Convention. 17 However, the Tribunal was not satisfied, on the evidence before it, that the applicant's family was in fact targeted by the Maoists as claimed or that the applicant would be imputed with an adverse political opinion by the authorities. The Tribunal did not accept that there is a real chance that the applicant would suffer harm should he return to Nepal. 18 The Tribunal found that the applicant, having arrived in Australia in October 2001 graduated from a college in Sydney in 2003 and subsequently sought enrolment in a country university in July 2003. His parents were funding the cost of his studies. The applicant gave evidence that, because of financial difficulty, he was unable to complete his degree. As a result, his student visa was cancelled. 19 The applicant claimed that he was unaware of ongoing Maoist extortion of his parents until after he had been detained by the Department. He stated that he did not ask his parents why they had not sent him money for fees during the time he was facing financial difficulty because he thought his family would pay the money. 20 When asked by the Tribunal if he had asked why his family could not pay the money, the applicant stated that he did not ask them initially. Later he said that, when he spoke to his mother about fees, he was told his parents could not afford to pay any more because they were paying for his sister to study engineering and there was trouble in Nepal. The applicant also stated that his mother and father had not been making as much money because non-government organisations were suffering at that time. The Tribunal was not satisfied that, had his family been targeted financially by the Maoists, they would have not informed their son of the fact. 21 The applicant wrote a letter on 24 February 2005, seeking Ministerial intervention in his case. In that letter, the applicant made no mention of his family's financial suffering at the hands of the Maoists. The Tribunal found it implausible that, had the applicant's parents been suffering as claimed at the hands of the Maoists in Nepal, he would not have mentioned that matter in his letter to the Minister. 22 The Tribunal was of the view that the applicant had fabricated his claims for protection because he found himself in a very difficult situation, having exhausted all other avenues in seeking a visa to remain in Australia. The Tribunal considered that his evidence indicated that he was told by other Nepalese detainees that it was very hard to apply for a protection visa, and he knew it was the last option available. 23 The applicant claimed that lack of funds from his family prohibited him from continuing his education in Australia. The Tribunal was not convinced by that evidence. The Tribunal referred to the applicant's admission in evidence that he felt shame about not completing his degree, especially since his parents had worked so hard to fund his education in Australia. The Tribunal was of the view that the applicant applied for a protection visa as a last resort to remain in Australia. 24 In the further amended application filed on 14 July 2006, several grounds were raised as follows: (1) The Tribunal failed to carry out its statutory duty in that it had two departmental files constituting information which was a reason or part of the reason for affirming the decision but failed to give particulars of that information to the applicant. (2) The Tribunal relied upon irrelevant material, being his letter to the Minister and the findings of the first Tribunal. (3) The Tribunal's decision was based on an unwarranted assumption that the application for a protection visa was a last resort to remain in Australia. (4) The Tribunal failed to take account of relevant material, being certain documents tendered by the applicant in support of his Application for Review. The two grounds specified in the document provided to the Court by the applicant this morning correspond generally with grounds (2) and (3). 25 In his reasons, the Primary Judge referred to a contention put on behalf of the applicant that the Tribunal's reasoning revealed reliance upon information that was not given by the applicant to the Tribunal. The applicant referred in that context to the statement by the Tribunal that "the Applicant admitted in evidence that he felt shame about not completing his degree". His Honour went on to say that the Tribunal had raised that question at the hearing by referring the applicant to a statement which it apparently found in a bridging visa application. 26 The Tribunal said as follows: "In January 2005 the Applicant applied to the Department for a bridging visa. I referred the Applicant to question 15 of that document which asks 'why did you not depart Australia before the expiry of your visa or after your application was refused?', to which he Applicant replied 'I was ashamed to go home without my degree'. I asked the Applicant if that was his recollection and if that was the answer he supplied. He replied that it was. I asked the Applicant what it was he felt shame about. He stated that his parents had worked hard to send him to study in Australia. Because of the money pressures he found that the pressure was too much. I asked why he had not asked his family for money early on in the second term. He replied that he thought his family would pay the money. I asked if he asked his family why they could not pay the money. He replied that he did ask them initially in the second term and he spoke to his mother about fees, but she said they could not afford to pay the fees any more as finances were not good because they were paying for his sister to study engineering and there was trouble in Nepal. I asked what his mother meant by that. He stated that there were too many problems as the city was closed and supplies were not getting through. His father was not making as much money because the non-government organisations were also suffering. His father had saved a lot of money previously." 27 The Primary Judge observed that a significant difficulty facing the contention that the Tribunal relied upon the applicant's statement in his bridging visa application and not upon his evidence given to the Tribunal at the hearing, is that it was impossible, in the absence of the transcript, for the Federal Magistrates Court to determine that he did not repeat his feelings of shame in his evidence to the Tribunal. 28 His Honour considered that the Tribunal's reference to the "applicant admitted in evidence" tends to suggest that it relied upon his statements to it at the hearing, rather than the converse. His Honour was therefore not satisfied that the Tribunal had relied upon statements that had not been made to the Tribunal. 29 The variation of that contention that appears in the document provided to the Court this morning is as follows. "The Tribunal member and Federal Magistrate failed to notice the 'grammatical tense' of the question. The question asked is in past tense - Why did you not depart Australia? In replying to that question, I was merely describing my mental state back then not after I heard the persecutions my family was facing and not while I was applying for a protection visa. Therefore, the Tribunal member should not have relied on my statement on my bridging visa application and Federal Magistrate should not have discredited my arguments in regards to the procedure the Tribunal followed to discard my protection visa application." 30 Thus, the applicant does not appear to be taking up the contention put to the primary judge on his behalf by his solicitor that there was a failure to comply with s 424A in relation to the statement in the bridging visa application. The applicant's ground discloses no jurisdictional error at all. Assuming, though, that it is intended to raise the contention advanced before the Federal Magistrates Court, I am unable to see any error on the part of the Primary Judge in dealing with that contention. 31 On their face, the reasons of the Tribunal indicate that the applicant did express shame. The complaint of the applicant today is that the Tribunal misunderstood his evidence. Be that as it may, that does not constitute jurisdictional error. There is no basis for saying the Tribunal misunderstood its function, or did not make a fair and reasonable effort to exercise jurisdiction. 32 The second ground now raised by the applicant is based on the Federal Magistrates Court's treatment of the third ground, namely, that the Tribunal's decision was based on an unwarranted assumption that the applicant's application for a protection visa was a last resort to remain in Australia. I have already referred to the finding made by the Tribunal in that regard. 33 In support of the ground, the applicant's solicitor argued before the Federal Magistrates Court that it was not open to the Tribunal to find that the protection visa application would have appeared to be a last resort because the applicant would always have available, as a last resort, a right to apply to the Minister for discretionary intervention under s 417, as he subsequently did, rather than file a notice of appeal. The Primary Judge considered that the argument was misconceived. His Honour said that the Tribunal's finding was one of fact about the applicant's motives when applying for the protection visa. His Honour was of the opinion that it was clearly open to the Tribunal to draw that inference. 34 Even if there were evidence that the applicant ultimately intended to apply under s 417 after losing before the Tribunal, that would not have made the Tribunal's finding one based upon an "unwarranted assumption". Rather, his Honour considered that would have tended to confirm the Tribunal's finding, since it might suggest that the applicant made false refugee claims for the purpose of gaining access to the s 417 procedure. His Honour concluded that the grounds did not raise jurisdictional error and that it was misconceived in its evidentiary premises. 35 The ground as formulated by the applicant today is as follows: "Despite Federal Magistrate's decision I still claim it is an unwarranted assumption on behalf of RRT to twist the meaning of my statement where I said, 'I knew protection visa was my last option' and use it for their benefits. Given the situation where the generosity of kind-hearted immigration department's reputation of keeping refugees for over seven years and hiring a charted [sic] plane to drop them to their country of origin, I was obviously overwhelmed by such generousness. I always had the option to apply protection visa, as I was scared to go back to my country. However, there remaining a chance of applying for a student visa through which I could avoid such generous offer, I did as anyone would do to try and avoid long term detention. It is unfairness of the RRT member and Federal Magistrate to perceive the meaning of my statement in context. Please note in the above decision record Federal Magistrate mentions, 'I also note that the applicant said to the Tribunal that he had been told by other Nepalese detainees that it was very hard to apply for a protection visa and he knew it was the last option available'." 36 Once again, I do not perceive any jurisdictional error in the ground so formulated by the applicant. I do not see any error on the part of the Federal Magistrates Court in the manner in which it dealt with that ground. 37 The Federal Magistrates Court also dealt with the other grounds raised in the further amended application of 14 July 2006. I have read those reasons and they do not on their face suggest error on the part of the Federal Magistrates Court. On the basis of the material presently before me, there does not appear to be any prospect of the appeal succeeding. 38 In the circumstances, there would be no utility in extending the time to appeal. It follows, therefore, that there would be no prejudice to the applicant in refusing an extension of time. I consider, therefore, that the application should be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.